Don’t Dabble in Family Law: A Lesson in Negligence

Family law has always had a reputation for being soft law, the area that lady lawyers practice, and a pink ghetto. Family law is not easy. There are upwards of 70 pieces of family law related legislation across Canada, to say nothing of the rules of court and process related legislation and skills, financial complexities, and family violence concerns. When no-fault divorce was introduced in 1968[1], lawyers did not specialize in family law. According to Constance Backhouse “most male lawyers eschewed divorce as odious, describing it as more ‘social work’ than ‘real law,’ and expressing reluctance to represent female clients whom they deemed overly emotional.”[2] By 1970, only 313 women had been admitted to the bar in Ontario.[3] Despite the increasing number of women who needed lawyers, there were few who were willing to practice family law. Women like Justice Claire L’Heureux-Dubé stepped in and developed the practice of family law. However, family law continues to suffer from a reputation for being not real law and something that lawyers can easily dabble in. As Robin West has suggested, “the more women in a field, the less prestigious” (at 979). In this column, I look at a recent negligence case that serves as a reminder not to practice family law without the requisite expertise.

In Martin v Giesbrecht Griffin Funk & Irvine LLP and Lavergne, 2022 ONSC 1684, the lawyers were found to have breached their fiduciary obligations to their client by acting in a conflict of interest, being incompetent, and failing to disclose material risks. They were ordered to pay their client, Mr. Martin, damages in the amount of $945,389 (paras 59 & 77). In effect, the thing every family lawyer who does marriage contracts fears, happened to Mr. Giesbrecht and his firm. He advised his client to sign a marriage contract that was subsequently set aside because it was entered into improperly (see: Martin v Sansome, 2014 ONCA 14). Mr. Martin’s former spouse did not understand the nature or consequences of the contract when she signed it, and so Mr. Martin was ordered to make an equalization payment. As a result, Mr. Martin sued his lawyers in negligence because of the damages he suffered.

The Facts

Mr. Martin was married to Ms. Sansome, and they had one child together. Mr. Martin’s family had lived on a farm in a Mennonite community since the 1830’s (para 6). In 2000, Mr. Martin’s parents wanted to transfer the farm into his care. The terms were negotiated with the assistance of church committees, not by the parties directly (para 12, CA). Once the terms were settled, Mr. Martin and Ms. Sansome met with and retained Mr. Giesbrecht for the real estate transaction and a related employment law matter (para 9). Mr. Giesbrecht suggested the marriage contract to protect the family farm, and he offered to draft it. The contract would provide that Mr. Martin be able to keep his gifts and inheritances from being included in any equalization if the parties separated. In effect, the contract would exclude the value of the farm so that it stayed within the Martin family. The terms of the contract were not a “bad deal” and quite “typical” under the circumstances (paras 49-51). This case was not about a lack of disclosure or the contract being unfair (the arguments typically made to set aside a marriage contract). The problem was that Mr. Giesbrecht failed to tell the couple that he had no experience in family law, he had never drafted a marriage contract before, and he was in a conflict of interest (para 12).

Mr. Giesbrecht did not draft the contract and he did not read it prior to asking the couple to sign it. He passed the task of drafting to his associate, Ms. Lavergne, who did not speak to the parties and “only” spent 1.4 hours drafting it (para 15). The first time either party saw the marriage contract was when they attended Mr. Giesbrecht’s office to sign the real estate documents together with the contract. Mr. Giesbrecht “had not read the marriage contract” and he “did not explain it” to Mr. Martin and Ms. Sansome (para 59).

It seems that when Ms. Sansome arrived at the office to sign the contract, Mr. Giesbrecht realized that she would need independent legal advice (“ILA”) (para 19). ILA is not required for an enforceable marriage contract in Ontario, but the lack of it goes to whether the party understood the nature or consequences of the agreement. Mr. Giesbrecht sent Ms. Sansome for ILA indicating that he understood that a lawyer cannot represent both sides in a family law matter because of their adverse legal interests (see: Model Code of Professional Conduct R 3.4-1). That said, Mr. Giesbrecht selected Ms. Sansome’s lawyer, Ms. Winn, and arranged for the meeting to take place that same morning, suggesting he failed to appreciate Ms. Winn’s role in providing ILA. In addition, Ms. Winn had a visual impairment, which Mr. Giesbrecht knew about, and so she was unable to read the marriage contract (already signed by Mr. Martin) within the 20 minutes she had with Ms. Sansome (para 20). During the meeting Ms. Sansome was in tears. All she knew was that the marriage contract was “not good for her” (para 65), but she signed it to close the farm transaction (para 22). Justice Campbell found that Ms. Sansome “paid nothing and she received nothing” in exchange for Ms. Winn’s signature on the ILA certificate (para 21). The “marriage contract was signed within three hours of the parties first seeing it” (para 59). In short, Ms. Sansome was not part of the negotiations, she did not see the marriage contract prior to being asked to sign it, her lawyer was selected for her, and her lawyer failed to explain the nature and consequences of the contract to her.

Predictably, when the parties separated in 2007, Ms. Sansome sought to have the marriage contract set aside. At that time, Mr. Giesbrecht confirmed to Mr. Martin that the marriage contract was valid and enforceable (para 37). But by 2011, the year prior to trial, he realized the mistakes he had made and reported himself to Law Pro. Mr. Giesbrecht never conveyed this to Mr. Martin who continued to believe the contract was valid and enforceable (para 37).

Ms. Sansome sought to have the marriage contract set aside under s.56(4) of the Family Law Act, RSO 1990, c F 3. Section 56(4)(b) provides that a domestic contract can be set aside “if a party did not understand the nature or consequences of the domestic contract.” Typically, ensuring both sides are represented, and the terms of the agreement are thoroughly explained and discussed will satisfy this requirement. In other words, even if the contract is not favourable, if a party knows its shortcomings, they cannot rely on them to have the contract set aside. Except, Ms. Sansome did not have ILA, and she did not understand the “nature or consequences” of signing the agreement (paras 42-45, CA). The trial judge set aside the marriage contract, and the decision was upheld by the Ontario Court of Appeal in 2014. Mr. Martin was required to make an equalization payment to Ms. Sansome, plus interest.

The Negligence Claim

Mr. Martin sought damages from Mr. Giesbrecht and his firm for negligence and breach of fiduciary duty. Mr. Giesbrecht admitted that the “whole thing” was a “colossal mess” caused by him (para 37). He admitted that he “was incompetent to accept the mandate because of his inexperience and lack of expertise in family law” (para 59). Indeed, he “had never done a marriage contract before” (para 12). Justice Gibson found that Mr. Giesbrecht breached the standard of care and his fiduciary duty to his client (para 57). The standard of care for lawyers’ negligence is the service that would be provided by a reasonably competent lawyer in the same circumstances (see: Central Trust Co. v Rafuse, [1986] 2 SCR 147). In this case, that meant a reasonably competent family lawyer practicing in Kitchener in 2000. The expert witnesses found that Mr. Giesbrecht failed to meet the standard of care in “just about every way possible” (para 48), and that his actions were “not even close” (para 52) to the standard expected. But for the lawyers’ conduct, the marriage contract would not have been set aside. Also, Mr. Martin and his family would have easily postponed the farm transaction to ensure the marriage contract was entered into properly (paras 61-65). Mr. Giesbrecht and his firm were ordered to pay damages to Mr. Martin in the amount of $945,389 (equalization payment, legal costs associated with defending the marriage contract, and the debt incurred) (para 58).

In sum, Mr. Giesbrecht made at least ten serious errors:

• Did not advise either party that he was not competent to practice family law.
• Did not advise either party that he was in a conflict of interest.
• Acted for both sides in a marriage contract.
• Did not speak to the parties about the terms of the contract until the day they signed it.
• Did not read the marriage contract.
• Did not explain the marriage contract to either party.
• Had both parties sign the contract without ILA.
• Did not delay the farm transfer so that the marriage contract could be done properly.
• Believed the marriage contract was valid and enforceable.
• Did not communicate to Mr. Martin when he realized his mistakes.

There is no publicly available information on any disciplinary action taken by the Law Society of Ontario (“LSO”). This is not unusual, as only a small number of complaints reach the tribunal level resulting in a reported decision. For example, in 2019 the LSO received 5,838 complaints (18% related to family law), but only 25% were transferred for prosecution. The remaining cases were closed for various reasons such as insufficient evidence or with “staff caution”. See Amy Salyzyn’s excellent Slaw column for a discussion about the problems with the lack of transparency in relation to the complaints that do not proceed to a public hearing.

The Lesson

Don’t dabble in family law. The Martin marriage contract was signed in 2000, prior to Hartshorne v Hartshorne, 2004 SCC 22 and LeVan v LeVan, 2008 ONCA 388, leave to appeal to SCC refused 32743 (23 October 2008); two of the cases that sent a chill through the family law bar in relation to marriage contracts. Indeed, ever since LeVan, many family lawyers refuse to represent clients who want marriage contracts. If they do, many lawyers will impose strict rules such as: requiring that both sides be represented; ensuring there is at least one four-way meeting with both parties and their lawyers, so that everyone understands the parties’ intentions and the consequences; requiring that both sides provide a complete and detailed net worth statement; and, not signing too close to the wedding (or better yet, signing afterwards) (see e.g.: here). Since Miglin v Miglin, 2003 SCC 24 (another domestic contract case), many family lawyers will also refuse to include a section that limits entitlement to spousal support.

Many of the norms family lawyers practice by today are in place because of the culture of challenging marriage contracts once the parties separate. A quick search on CanLII results in 227 cases with the terms “marriage contract” and “set aside” in the last year alone. The last Law Pro Family Law Claims Fact Sheet (current to April 2019), emphasizes the importance of explaining the terms of domestic contracts to clients. According to Law Pro, 39% of common practice errors relate to communication, and one of the examples under that heading is “failing to ensure the client understands the potential consequences of excluding certain property from an equalization calculation in a marriage contract.” Law Pro also provides a Domestic Contract Matter Toolkit to assist lawyers in preparing these complex documents. In essence, today there are strict practice norms that have developed to protect lawyers and their clients who want marriage contracts.

Conclusion

Martin v Giesbrecht et al is not just about negligent lawyers. Ms. Sansome seems to have been treated poorly by her husband, beyond the marriage contract. Justice Gibson observed that the defendants’ lawyer had “sought to highlight the less admirable aspects of Mr. Martin’s life and his treatment of Linda Sansome;” but ultimately the parties’ history was of “marginal relevance” to the negligence issue (para 43). In addition, Mr. Martin and Mr. Giesbrecht seemed to pilot the farm transaction and marriage contract in a way that excluded Ms. Sansome; to the point that the only lawyer she met with, who should have advocated for her interests, was unable to read the contract and only met with her for 20 minutes. It is not clear from the decisions why Mr. Giesbrecht felt competent to handle the parties’ marriage contract in a clear conflict of interest. His reasoning may have nothing to do with the perception that family law is easy. It could be that he failed to see Ms. Sansome.

In 2013, The Action Committee on Access to Justice in Civil and Family Matters observed that family law is the “poor cousin” within the justice system, and regarded as an “undesirable area of practice by some lawyers and law students” (13). In the context of family violence, Hon. Donna Martinson Q.C. and Dr. Margaret Jackson have argued that “devaluing” family law is extremely problematic, and that a “lack of effective legal representation for women in family law cases” is an “inequality” issue (72-73). In the US context, Barbara Glesner Fines and Cathy Madsen have argued there “is considerable evidence that neither society nor the legal profession care enough about monitoring or improving family law practice. The low status of both clients and attorneys in family law exacerbates the undervaluation of this critical component of our legal system.”[4] It may be that the way the Martin and Sansome marriage contract unfolded was about negligent lawyers, and Mr. Martin undoubtedly deserved to be reimbursed for his losses; however, Ms. Sansome’s experience also seems to have been a product of problematic societal norms and a justice system that devalues the area of law that should have come to her aid much sooner.

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[1] See: Divorce Act, RSC 1967-68, c 24.

[2] Constance Backhouse, Two Firsts: Bertha Wilson and Claire L’Heureux-Dubé at the Supreme Court of Canada (Toronto, ON: Second Story Press, 2019) at 77.

[3] See: Mary Jane Mossman, “Portia’s Progress: Women as Lawyers Reflections on Past and Future” (1988) 8 Windsor YB Access Just 252 at 255.

[4] Barbara Glesner Fines and Cathy Madsen, “Caring Too Little, Caring Too Much: Competence and the Family Law Attorney” (2007) 75:4 UMKC L Rev 965 at 974.